- (1.) Invoking the jurisdiction of this Court under Article 32 of the Constitution of India, the petitioner, who has been sentenced to death, has prayed for issue of a mandamus or appropriate writ or direction for setting aside the order dated 30th April, 2015, passed by the Presiding Officer, Designated Court under TADA (P) Act, 1987, for Bombay Blast Cases and the order bearing No.S-0113/C.R.652/13/PRS-3 dated 13th July, 2015, passed by the Government of Maharashtra, Home Department and the communication bearing O.W. No.ASJ/DEATH SENTENCE/222/2015 dated 13th July, 2015, issued by the Superintendent, Nagpur Central Prison, Nagpur, in terms whereof the death sentence awarded to the petitioner has been directed to be executed on 30th July, 2015, at 7.00 a.m.; issue a writ of prohibition prohibiting the respondents and each one of them along with their subordinates/agents/assigns from taking steps in pursuance of the orders dated 30th April, 2015 and 13th July, 2015, and, further to stay the execution of the death sentence awarded to him in terms of the judgment dated 25th October, 2007 of the Designated TADA Court, Bombay in BBC No.1/1993, which has been confirmed by this Court vide judgment dated 21st March, 2013 in Criminal Appeal No.1728 of 2007, till the petitioner has exhausted all the legal remedies available to him, to have the sentence of death awarded commuted to that of life imprisonment including the remedies under Articles 72 and 161 of the Constitution of India.
(2.) Before we advert to the factual assertions made in the writ petition by the petitioner and the stand and stance put forth by the respondents, we are obliged to refer to certain developments that took place in the judicial proceedings before this Court. In course of hearing of the writ petition, the matter was listed before a two-Judge Bench. It was heard for some days. After hearing, Anil R. Dave, J. passed the following order: "Heard the learned senior counsel appearing for both the sides at length. It is a fact that the conviction of the petitioner has been confirmed by this Court and the Review Petition as well as the Curative Petition filed by the petitioner have also been dismissed by this Court. Moreover, His Excellency Hon'ble The President of India and His Excellency The Governor of Maharashtra have also rejected applications for pardon made by the petitioner, possibly because of the gravity of the offence committed by the petitioner. It has been submitted by the learned counsel appearing for the petitioner that one more application made to His Excellency The Governor of Maharashtra is still pending. If it is so, it would be open to His Excellency The Governor of Maharashtra to dispose of the said application before the date on which the sentence is to be executed, if His Excellency wants to favour the petitioner. Submissions made about the Curative Petition do not appeal to me as they are irrelevant and there is no substance in them. In these circumstances, the Writ Petition is dismissed."
(3.) Kurian Joseph, J., disagreed with Anil R. Dave, J. The basis of disagreement as is evincible from his judgment is that the curative petition that was decided by a Bench of three senior-most Judges of this Court on 21st July, 2015, was not appositely constituted as required under Rule 4 of Order XLVIII of the Supreme Court Rules, 2013 (for short, 'the Rules'). After referring to Rule 4(1) and (2) of the said Rules and the term 'judgment' as defined in Order I Rule 2(k) of the Rules, the learned Judge has held thus: "It may not also be totally out of context to note that the order dated 09.04.2015 in the Review Petition is captioned as a Judgment, apparently, in terms of the definition of 'judgment' under the Supreme Court Rules. Thus, it is found that the procedure prescribed under the law has been violated while dealing with the Curative Petition and that too, dealing with life of a person. There is an error apparent on the face of the order in the Curative Petition. The mandatory procedure prescribed under law has not been followed. Though the learned senior counsel and the learned Attorney General referred to various grounds available in a Curative Petition, in the nature of the view I have taken in the matter that the Curative Petition itself has not been decided in accordance with the Rules prescribed by this Court, that defect needs to be cured first. Otherwise, there is a clear violation of Article 21 of the Constitution of India in the instant case. The learned Attorney General, inter alia , contended that this is not an issue raised in the writ proceedings. I do not think that such a technicality should stand in the way of justice being done. When this Court as the protector of the life of the persons under the Constitution has come to take note of a situation where a procedure established by law has not been followed while depriving the life of a person, no technicality shall stand in the way of justice being done. After all, law is for man and law is never helpless and the Court particularly the repository of such high constitutional powers like Supreme Court shall not be rendered powerless. In the above circumstances, I find that the order dated 21.07.2015 passed in the Curative Petition is not as per the procedure prescribed under the Rules. Hence, the Curative Petition has to be considered afresh in terms of the mandatory requirement under Rule 4 of Order XLVIII of the Supreme Court Rules, 2013. In that view of the matter, the death warrant issued pursuant to the Judgment of the TADA Court dated 12.09.2006, as confirmed by this Court by its Judgment dated 21.03.2013, of which the Review Petition has been dismissed on 09.04.2015, is stayed till a decision afresh in accordance with law is taken in the Curative Petition. After a decision is taken on the matter, as abovesaid, the Writ Petition be placed for consideration before the Court." On the basis of difference of opinion between the two learned Judges, the matter has been placed before us.;